373-381 South Broadway Associates

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 973 (N.L.R.B. 1991)

973
303 NLRB No. 149
373-381 SOUTH BROADWAY ASSOCIATES
1 Compare Parkview Gardens, 166 NLRB 697 (1967), and Imperial House
Condominium, 279 NLRB 1225 (1986), affd. 831 F.2d 999 (11th Cir. 1987)
(establishing $500,000 standard for residential apartments and for condomin-
iums and cooperatives, respectively) with Mistletoe Operating Co., 122 NLRB
1534 (1959) (holding that jurisdiction will be asserted over commercial office
buildings when the employer’s gross annual revenue amounts to $100,000, of
which $25,000 is derived from organizations whose operations meet any of the
Board’s standards exclusive of the indirect outflow or indirect inflow stand-
ards).
2 See Carol Management Corp., 133 NLRB 1126 (1961), and cases cited
there.
3 See id.
4 We are also unable to determine, based on the allegations in the petition,
whether Petitioners South Broadway and Sunview are joint or single employ-
ers.
5 See 135-45 West Kingsbridge Avenue Assoc., 300 NLRB 946 (1990), and
Mandel Management Corp., 248 NLRB 186 (1980).
6 See NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224 (1963). We assume
in this regard that the local suppliers from which Sunview purchased the oil
had received the oil directly from outside the State of New York. Cf. Better
Electric, 129 NLRB 1012 (1960) (such an assumption necessary in order for
Continued
373-381 South Broadway Associates and Sunview
Management Corp. and Service Employees
International Union, Local 32E, AFL–CIO.
Case AO–288
July 31, 1991
ADVISORY OPINION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT, DEVANEY, OVIATT, AND
RAUDABAUGH
Pursuant to Sections 102.98(a) and 102.99 of the
National Labor Relations Board’s Rules and Regula-
tions, on June 17, 1991, 373-381 South Broadway As-
sociates and Sunview Management Corp. (Petitioners)
filed a petition for an Advisory Opinion as to whether
the Board would assert jurisdiction over their oper-
ations.
In pertinent part, the petition alleges as follows:
1. A representation proceeding, Case SE–57913, is
currently pending before the New York State Labor
Relations Board (SLRB) in which Service Employees
International Union, Local 32E, AFL–CIO (the Union)
is seeking to represent certain employees employed by
Petitioner South Broadway at its apartment building lo-
cated at 373-381 South Broadway, Yonkers, New
York.
2. Petitioner South Broadway is the fee owner of the
apartment building located at 373-381 South Broad-
way, Yonkers, New York. Petitioner Sunview is the
managing agent of the building. The building consists
of 60 residential units and 7 commercial stores.
3. The current annual rent roll of the building is
$509,448 and is expected to increase during the com-
ing year. During 1990, Petitioners purchased from a
local oil company over $66,000 in fuel oil, which ema-
nated from outside the State of New York, and also
purchased from within the State over $47,000 worth of
other materials and supplies for the building, many of
which likewise originated outside the State of New
York.
4. In addition to managing the building at 373-381
South Broadway, Yonkers, New York, Petitioner
Sunview also manages five apartment buildings in the
city of New York and one commercial office building
in Great Neck, Nassau County. The annual rental in-
come from these other properties totals approximately
$1.8 million. Sunview purchased over $51,000 of fuel
for these premises which originated outside the State
of New York.
5. The aforesaid commerce data has been neither ad-
mitted nor denied by the Union, and the SLRB has not
made any findings with respect thereto.
6. There is no representation or unfair labor practice
proceeding involving the same dispute pending before
the Board.
Although all parties were served with a copy of the
petition for Advisory Opinion, none filed a response as
permitted by Section 102.101 of the Board’s Rules.
Having duly considered the matter, we find that the
petition is insufficient for us to render a meaningful
opinion as to whether the Board would assert jurisdic-
tion over Petitioner South Broadway, the owner of the
subject building. The Board has established different
jurisdictional standards for residential and commercial
buildings.1 Further, where, as here, the property owned
and/or managed by the employer is diversified, the
Board has historically analyzed one or the other por-
tions of the employer’s operation to determine whether
it meets the relevant jurisdictional standard.2 If it does,
the Board will assert jurisdiction over the entire oper-
ation.3 The petition here, however, fails to specify
what portion of the $509,448 in annual rental income
from the subject building is derived from the residen-
tial apartments and what portion is derived from the
commercial stores tenanting the building. Thus, we are
unable to make this determination.4
On the other hand, we are able to determine that the
Board would assert jurisdiction over Petitioner
Sunview, the managing agent of the subject building.
Although, as indicated, the Board normally analyzes
each portion of a diversified real estate operation sepa-
rately, the Board has recognized an exception where
the gross annual revenues from the employer’s entire
operation exceed $1 million—the highest discretionary
jurisdictional monetary standard the Board applies to
any enterprise.5 Here, as the petition alleges that the
combined annual rental income from all the residential
and commercial properties managed by Sunview in ad-
dition to the subject building exceeds $1.8 million,
Sunview clearly satisfies this standard. Further, as the
petition also alleges that Sunview purchased over
$51,400 of fuel originating outside the State of New
York for those properties, it also satisfies our statutory
jurisdictional standards.6
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
purchases to constitute indirect inflow under Board’s nonretail jurisdictional
standard).
7 The Board’s Advisory Opinion proceedings under Sec. 102.98(a) of the
Board’s Rules are designed primarily to determine whether an employer’s op-
erations meet the Board’s ‘‘commerce’’ standards for asserting jurisdiction.
Accordingly, the instant Advisory Opinion is not intended to express any view
as to whether the Board would certify the Union as representative of the peti-
tioned-for unit under Sec. 9(c) of the Act. See generally Sec. 101.40(e) of the
Board’s Rules.
Accordingly, the parties are advised that the Board
is unable to issue a meaningful opinion on whether it
would assert jurisdiction over Petitioner South Broad-
way, but that, based on the foregoing allegations and
assumptions, the Board would assert jurisdiction over
Petitioner Sunview.7
MEMBER OVIATT, dissenting.
Contrary to my colleagues, I would require both Pe-
titioners, South Broadway and Sunview, to submit fur-
ther information regarding their real estate operations
before issuing an opinion as to the Board’s jurisdiction
over either. See my dissenting opinion in 135-45 West
Kingsbridge Avenue Assoc., 300 NLRB 946 (1990).
Cf. Century Assets, 280 NLRB 1352 (1986).